Present writ petition in question has been filed by petitioner questioning the validity of the order dated 18.08.2010 passed by District Inspector of Schools J.P. Nagar wherein District Inspector of Schools J.P.Nagar has forwarded the matter to the Principal/ Authorized Controller, Kundan Model Inter College, Amroha District J.P.Nagar for doing needful in the matter in respect of transfer of Panjesh Kumar in the institution concerned as Lecturer in English.
In the district of J.P. Nagar there is recognized institution namely Kundan Model Inter College, Amroha. Said institution is duly covered by the provisions of U.P. Act No. II of 1921; U.P. Act No. 24 of 1971 and U.P. Act No. V of 1982 and the 1998 Rules framed thereunder. Petitioner was granted appointment as Subject Expert in Kundan Model Inter College, Amroha, District J.P. Nagar under the order of Regional Joint Director of Education, 12th Region Moradabad, dated 29.08.2009 after due recommendation was made by the Committee constituted in the said direction on fixed salary of Rs. 5000/- per month. Petitioner claims that pursuant to said recommendation dated 29.08.2001, he joined in the institution concerned and had been performing and discharging duties as Subject Expert in English. Earlier Subject Expert who completed three academic sessions were removed and the said Subject Experts, at the said point of time challenged the validity of the Government Order dated 06.06.2001 and 30.06.2003 wherein restriction has been imposed for engagement of teachers as subject expert who completed three academic sessions. Said condition was quashed by Lucknow Bench of this Court in Writ Petition No. 6319 (SS) of 2003. This Court has also in Civil Misc. Writ Petition No. 35653 of 2003 passed following orders following the said order:
"In this bunch of writ petitions, the petitioners have challenged the Government Orders dated 6th June, 2001 and 30th June 2003 wherein restriction has been imposed for the engagement of teachers as Subject Expert who have completed three academic sessions. This condition has been already quashed by the Lucknow of this Court in Writ Petition No. 6319 (SS) of 2003, (Chandra Kishore and others Vs. State of U.P. and others) decided on 20th October, 2003. The Court while allowing the writ petition had issued the following directions.
(i) The impugned order dated 30.06.2003 which prohibits the renewal of those Subject Experts who have completed three academic session is quashed.
(ii) Similar restriction imposed in the order dated 06.06.2001 alongwith the restriction for non-payment during summer vacation are also quashed.
(iii) The opposite party no. 2 is directed to issue direction for all the Regional Joint Director of Education for permitting all the Subject Experts including the petitioners in their respective regions to resume duties immediately if the Subject Experts are eligible and they were selected according to the prescribed procedure. The order shall be issued within a period of 10 days so that the students may not suffer any more.
(iv) The opposite party no. 1 is directed to frame a policy for the regularization of the the existing Subject Experts against the existing 4000 vacancies of the teachers in the aided educational institutions after taking into consideration the aforesaid observations and if required make necessary amendment in the U.P. Intermediate Education Act or U.P. Secondary Education Services Selection Board, Act, within a period of two months"
Learned Standing counsel could not point out any distinction in the aforesaid judgment. Respectfully following the aforesaid judgment all these writ petitions are allowed in the same terms."
Thereafter it appears that State Government incorporated amendment in U.P. Secondary Education Services Selection Board, Act 1982 incorporating U.P. Secondary Education Services Selection Board, (Amendment) Act 2006 and therein Section 21-E was introduced which provides for absorption of Subject Experts against substantive vacancy. Petitioner claims that pursuant to said statutory provision introduced by means of Section 21-E of U.P. Act No. V of 1982, petitioner was absorbed at Rastriya Inter College, Dhanura District J.P. Nagar vide order dated 12.09.2007 passed by Regional Joint Director Education. Petitioner submits that thereafter he sought transfer under Regulations 55 to 62 of Chapter III of U.P. Act No. II of 1921. Said transfer application was allowed and he came back at the present institution and since then he has been functioning in the institution. Petitioner has further stated that there are 12 sanctioned posts of Lecturer in different subjects against which nine Lecturers are working in the institution and three posts of Lecturers are lying vacant in the institution which is inclusive of the post of Lecturer in English. Petitioner's contention is that said post of Lecturer in English is liable to be filled by way of promotion and further submits that his claim is liable to be considered under 50% quota and in such a situation and in this background request which has been made by Panjesh Kumar, Lecturer in English Lok Priya Inter College, Meerut for being transferred to petitioner's institution as Lecturer in English is not at all liable to be accepted by way of transfer as Lecturer in English at Kundan Model Inter College, Amroha, District J.P. Nagar. With the aforesaid request present writ petition in question has been filed.
Sri Irshad Ali, Advocate contended with vehemence that in the present case petitioner fulfills the requisite eligibility criteria for consideration of his claim for promotion on the post of Lecturer in English as post in question is falling within 50% quota, as such in all eventuality said post is to be filled up by way of promotion in this background no steps whatsoever should be taken for filling up the said post by way of transfer, as such writ petition in question deserves to be allowed.
Sri Bhim Singh, Advocate on the other hand contended that petitioner does not fulfill even requisite minimum eligibility criteria for consideration of his claim for promotion, inasmuch as he has been absorbed as Assistant Teacher in L.T. Grade in the institution pursuant to order passed in exercise of authority vested under Section 21-E of U.P. Act No. V of 1982, as such petitioner does not has to his credit five years continuance regular service, in such a situation and in this background request made by petitioner is not at all liable to be accepted.
Scheme of appointment of Subject Expert has been formulated by the State Government keeping in view the fact that w.e.f. 09.12.1989, prohibition has been imposed in respect of creation of the posts in recognized aided institution and in order to meet out such contingency it was resolved to make appointment based on payment of honorarium on modalities were finalized in the scheme of things. It was also provided that said arrangement has been made by way of alternative arrangement on fixed honorarium and except fixed honorarium no other benefits shall be made admissible. It was made clear in any view of the matter neither any pension nor gratuity or any benefit would be admissible. It was further mentioned that Subject Expert would take four class i.e. 24 Classes in a week and subject experts would also free to perform and discharge another duties. Terms and conditions of subject expert was thus, clear and categorical. Relevant extract of the Government Order dated 11.10.1999 is being extracted below.
dk;Zky; f'k{kk funs'kd (ek/;fed) m0 iz0 bykgkckn foKfIr jktkKk la[;k [email protected]&1600 (559)@98 fnukad 11 vDVwcj 1999 }kjk izns'k ds v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa ([email protected]) fnukad 0-12-86 ls in l`tu cUn gksus ds QyLo:i Nk=ksa dh c vH;fFkZ;ksa ds fy, funsZ'k fo"k; fo'ks"kK ds lEcU/k esa funsZ'k fuEuor gSa & 1& ek/;fed f'k{kk vf/kfu;e& 1921 esa v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa ds gkbZLdwy ,oa bUVj d{kkvksa ds v/;kiu gsrq fo"k; fo'ks"kKksa ds fy, 'kSf{kd ,oa izkfof/kd ;ksX;rk,a ogh gksaxh] tks mijksDr ek/;fed f'k{kk vf/kfu;e& 1921 esa vyx&vyx fo"k;ksa ds fy, fu/kZkfjr gSa A 2& fo"k; fo'ks"kK dk ewy vf/kfu;e esa fu/kZkfjr izR;sd fo"k; ds fy, vyx&vyx gksxk vkSj fo|ky;ksa esa 'kSf{kd vko';drkuqlkj fo"k; fo'ks"kKksa dh inLFkkiuk dh tk;sxh A 3& fo"k; fo'ks"kKksa ds p;u gsrq ek/;fed f'k{kk vf/kfu;e 7 1921 esa of.kZr 'kSf{kd vgZrk ds lkFk fuEuor vgZrk;sa Hkh gksaxh & d& HkrhZ ds o"kZ ds igyh tqykbZ dks U;wure 4 o"kZ dk 'kSf{kd vuqHko A [k& bl lEcU/k esa v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa dh x;h 'kSf{kd vuqHko dks izkFkfed iznku dh tk;sxh A ,sls 'kSf{kd vuqHko izek.k&i= laLFkk izcU/kd }kjk iznku fd;s tk;saxs A tks ftyk fo|ky; fujh{kd }kjk izfr gLrk{kfjr gksxk A x& vlgk;rk izkIr ek/;fed fo|ky;ksa ds 'kSf{kd vuqHko izek.k&i= ekfld osru ds vk/kkj ij izekf.kr djuk gksxk vkSj bl ij ftyk fo|ky; fujh{kd dk izfrgLrk{kj vfuok;Z gksxk] izfrcU/k ;g Hkh gS fd mijksDr 'kSf{kd dsoy ek/;fed f'k{kk ifj"kn }kjk ekU;rk izkIr ek/;fed fo|ky;ksa rFkk jktdh; ek/;fed fo|ky;ksa ds fy, gh ekU; gksxk A twfu;j gkbZLdwyksa rFkk vU; ijh{kk cksMksZ }kjk ekU;rk izkIr fo|ky;ksa }kjk iznRr izek.ki= ekU; ugha gksxk A ?k& va'kdkfyd v/;[email protected]'kdksa ds lEcU/k esa 48 ekg ds fof/kor osru Hkqxrku fd, tkus ds lEcU/k esa ekgokj izek.ki= gksxk A 4& p;fur fo"k; fo'ks"kKksa dks :i;s [email protected]& izfrekg ,deq'r fu/kZkfjr ekuns; dk Hkqxrku fd;k tk;sxkA fu;r ekuns; ds vfrfjDr dksbZ vU; [email protected]/kk vuqeU; ugha gksxk A pwWfd jkT; deZpkjh ugha gksaxs A vr% Li"V fd;k tkrk gS fd bUgsa isa'ku Hkfo"; fuf/k] vodk'k vkfn ns; ugha gksaxs A 5& p;fur fo"k; fo'ks"kK 4 oknu izfrfnu vFkZkr 24 oknu izfrlIrkg ysaxs ijUrq fo"k; fo'ks"kK mijksDr v/;kiu dk;Z ds vfrfjDr vU; dksbZ djus ds fy, eqDr gksaxs A 6& e.Myh; la;qDr f'k{kk funs'kd eqjknkckn ,sls fo"k; fo'ks"kKksa dks 'kSf{kd vko';drkuqlkj mu v'kkldh; lgk;rk izkIr ek/;fed fo|ky;ksa esa in LFkkfir djsaxs tgWk fu/kkZfjr ekud vuqlkj v/;kidksa ds u;s inksa ds l`tu dh vko';drk gksxk A 7& fo"k; fo'ks"kK izfro"kZ 'kSf{kd l= ds vUr rd dk;Zjr jgsaxs A xzh"e vodk'k dh vof/k esa ,sls fo"k; fo'ks"kKksa dks dk;Z eqDr dj fn;k tk;sxk A dksbZ ekuns; ugha fn;k tk;sxk A 8& fo"k; fo'ks"kK gsrq fu/kZkfjr U;wure vk;q 1-7-99 dks 21 o"kZ ls de ugha gksxh A vH;FkhZ dh U;wure vk;q fnukad 1-7-99 dks 21 o"kZ gksuk vfuok;Z gS A 9& vH;FkhZ viuh leLr 'kSf{kd ,oa izkfof/kd ;ksX;rkvksa ds vUrxZr izek.k&i= ,oa vad rkfydk,a jktif=r vf/kdkjh ls izekf.kr dj vfuok;Z :i ls vkosnu i= ds lkFk layXu djsaxs A 10& vkosnu i= ds lkFk lkekU; Js.kh ds vH;FkhZ :0 [email protected]& ek= dk rFkk vuqlwfpr tkfr ,oa vuqlwfpr tutkfr ds vH;FkhZ :0 [email protected]& ek= dk dzkLM iksLVy vkMZj layXu djsaxs A dzkLM iksLVy vkMZj "e.Myh; la;qDr f'k{kk funs'kd" eqjknkckn ds inuke ls gksxk A 11& vH;FkhZ vius vkosnu i= ds lkFk i= O;ogkj dk irk fy[kk ,d fyQkkQk jftLVzh fVdV lfgr layXu djsaxs A 12& vkj{k.k vf/kfu;e&1994 ,oa le;≤ ij vkj{k.k lEcU/kh fuxZr 'kklukns'[email protected]/kfu;eksa ds vuqlkj vU; fiNMk oxZ] vuqlwfpr tkfr ,oa vuqlwfpr tutkfr rFkk vkjf{kr Js.kh ds vU; vH;fFkZ;ksa dks vkj{k.k ns; gksxh A 13& vkjf{kr Js.kh ds vH;FkhZ ftykf/[email protected]{ke vf/kdkjh vkj{k.k lEcU/kh tkfr izek.k&i= (tks jktif=r }kjk izekf.kr gksxk) vkosnu i= ds lkFk layXu djsaxs A 14& vH;FkhZ vkosnu i= ds lkFk viujh ikliksVZ lkbt dh QksVks jktif=r vf/kdkjh ls izekf.kr layXu djsaxs A 15& fo"k; fo'ks"kK gsrq vkosnu i= e.Myh; la;qDr f'k{kk funs'kd eqjknkckn ds inuke ls izsf"kr fd;k tk;sxk A 16& vkosnu i= jftLVMZ Mkd ls Hkstk tk,] lk/kkj.k ;k vU; [email protected]/;e ls vkosnu i= Lohdkj ugha fd;k tk;sxk A 17& vkosnu i= esa fdlh Hkh izdkj dh deh ik, tkus ij vFkok vkosnu viw.kZ ik, tkus ij Lohdkj ugha tk;sxk rFkk mlds fo:) dksbZ vkosnu [email protected] vH;kosnu Lohdkj ugha fd;k tk;sxk A 18& vkosnu i= e.Myh; la;qDr f'k{kk funs'kd] eqjknkckn ds dk;Zky; esa izkIr gksus dhvfUre frfFk 31-12-1999 gS A fu/kZkfjr frfFk izkIr vkosnu i= ij fopkj ugha fd;k tk;sxk A lfjrk ;kno vij f'k{kk funs'kd (ek/;fed) m0iz0] bykgkckn Pursuant thereto Subject Experts have been appointed and thereafter provision of Section 21-E of U.P. Act No. V of 1982 has been introduced.
At this juncture Section 21(E) of U.P. Act No. V of 1982 is being looked into:
Section 21-E. Absorption of subject experts.-(1) There shall be a list of subject experts working in private aided secondary schools possessing prescribed educational and training qualification including the subject experts who have received honorarium and worked for a minimum period of two academic sessions and were working on September 30, 2006. The list shall be maintained by the Director in such manner as may be prescribed.
(2) Where any substantive vacancy in the post of a teacher in an institution is to be filed by direct recruitment, such post shall, at the instance of the Inspector, be offered by the management to a subject expert whose name is included in the list referred to in sub-section (1).
(3). Where any subject expert who is offered an appointment in accordance with the provision of sub-section (2) fails to join the post within time allowed, which shall not be less than seven days, his name shall be removed from the list referred to in sub-section (1).
(4). No appointment of any teacher to an institution shall be made under Section 16 unless the list referred to in sub-section (1) is exhausted.
(5). The subject experts included in the list referred to in sub-section (1) shall be absorbed in those institution where any substantive vacancy is to be filled by direct recruitment. No subject expert shall have claim for appointment to any particular post.
Explanation- For the purposes of this section,-
(a) " Director" means the Director of Secondary Education, Uttar Pradesh and includes any other officer authorised by him this behalf;
(b) the words "Inspector" , "Institution", "Management" and teacher shall have the meaning respectively assigned to them in the Uttar Pradesh High School and Intermediate College (Payment of Salaries of Teachers and other Employees) Act, 1971, provided that "teacher" shall not include a Principal or a Headmaster.
(c) " Subject experts" mean, persons working in aided Secondary Schools on a fixed honorarium appointed in the prescribed manner on a contractual basis."
Petitioner's contention has been that under Section 21-E of U.P. Act No. V of 1982 he has been absorbed as Assistant Teacher in L.T. Grade in the institution concerned on 12.09.2007 and the service which has been rendered by petitioner as Subject Expert should also be counted towards computation of five years regular continuous service and then his claim is liable to be considered under Rule 14 of the U.P. Secondary Education Services Selection Board Rules 1998.
At this juncture Rules 10 & 14 of U.P. Secondary Education Services Selection Board, Rules 1998 is being looked into.
"Rules 10. Source of recruitment- Recruitment to various categories of teachers:-
14. Procedure for recruitment by promotion:- (1) Where any vacancy is to be filled by promotion all teaches working in trained graduates grade or certificate of training grade, if any, who possess the qualification prescribed for the post and have completed five years continuous regular service as such on the first day of the year of recruitment shall be considered for promotion to the lecturers grade or the trained graduates grade, as the case may be , without their having applied for the same.
Note:- For the purposes of this sub-rule, regular service rendered in any other recognized institution shall be counted for eligibility unless interrupted by removal dismissal or reduction to a lower post.
(2) The criterion for promotion shall be seniority subject to the rejection of unfit.
(3) The Management shall prepare a list of teachers referred to in sub-rule (1), and forward it to the Inspector with a copy of seniority list, service records, including the character rolls, and a statement in the pro forma given in Appendix-A (4) Within three weeks of the receipt of the list from the management under sub-rule (3), the Inspector shall verify the facts from the record of his office and forward the list to the Joint Director.
(5) The Joint Director shall consider the cases of the candidates on the basis of the records referred to in sub-rule (3) and may call for such additional information as it may consider necessary. The Joint Director shall place the records before the Selection Committee referred to in sub-section (1) of Section 12 and after the Committee's recommendation, shall forward the panel of selected candidates within one month to the Inspector with a copy thereof to the Management.
(6) With ten days of the receipt of the panel from the Joint Director under sub-rule(5) the Inspector shall send the name of the selected candidates to the Management of the institution which has notified the vacancy and the Management shall accordingly on authorization under its resolution issue the appointment order in the proforma given in Appendix ''F' to such candidate.
From the reading of Rule 10 of 1998 Rules it is clear that 50% of the vacancies in Lecturer's Grade is to be filled up by way of promotion from amongst substantively appointed teachers of Trained Graduate Grade (LT). For being considered for promotion under 50% quota Trained Graduate Teacher has to have substantive status in the said capacity and in addition to the same in terms of Rule 14 of 1998 Rules, has to have on the first day of year of recruitment completed five years continuous regular service. These are the essential condition prescribed for being considered for promotion. Substantive appointment has been defined under Rule 2 (d) of 1998 Rules as an appointment not being an ad-hoc appointment on the post of teacher made in accordance with the provisions in the Act and the Rules made thereunder and includes the appointment regularized under Section 33-A; 33-B or 33-C. Though specifically qua appointees absorbed under Section 21-E no reference has been given but the scheme of things provided for under Section 21-E of the Act, clearly shows that said subject experts have been absorbed against substantive vacancy to be filled in by direct recruitment and until and unless all subject experts are not absorbed, appointment of any teacher under Section 16 has been prohibited in such a situation from the date of their absorption "Subject Experts" will be treated as substantively appointed Trained Graduate Teacher (L.T. Grade).
Substantive status as L.T. Grade Teacher is there. The second requirement is that of five years continuous regular service on the first day of year of recruitment.
The expression "regular service" has not been defined either under U.P. Act No. 2 of 1921 or U.P. Act No. V of 1982 or the Rules formed thereunder i.e. 1998 Rules.
In the case of Smt. Suman Bhatnagar Vs. State of U.P., 2006 (1) ESC 348 (Alld), a learned Single Judge of this Court after taking into account dictionary meaning of word regular service has held as follows:
"6. The meaning of the word regular as understood in ordinary parlance is in accordance with rules, law or principle, in accordance with custom; normal; unvarying; orderly; properly authorized. In Blacks Law Dictionary 5th edition pp. 1155 defines the word 'Regular' as - conformable to law, steady or uniform in course, practice, or occurrence made according to rule arranged according to established plan, law or principle. Antonym of 'casual' or "occasional".
7. Webster's Dictionary, Volume II, page 1913 defines "regular" as to mean "formed" built, arranged or ordered according to some established rule, law principle...." Compare irregular....."Regular" may imply conformity to a prescribed rule.
8. The appointment of the petitioner stands saved under the Rules and, as such, in these circumstances, the appointment of the petitioner can be safely termed as regular. It is also admitted on record that the petitioner continued to serve as LT grade Teacher without any break and was also approved by the District Inspector of Schools. Thus, the definition as provided under Rule 14 quoted herein above, clearly covers the case of the petitioner. The respondents seem to be confusing with the word substantive inasmuch as the word used in Rule 14 are not the the effect that the petitioner should be appointed on a substantive basis in LT grade.
9. The definition of the word substantive as understood ordinarily is lasting for a long time; spread over a long period; expressing existence; real; independently and separately existent; not merely inferential or implied; not substantive.
10. A comparison of the meaning of the aforesaid two words namely regular and substantive leave no room for doubt that the words are not synonymous. It is something different that services in a substantive capacity would almost in all cases be regular but the converse may not be true. Every regular service need not be substantive in nature. A regular service in the present context would be an appointment made under the Rules and not de hors the same so as to make it regular. The appointment on ad hoc basis is also under the Rules and under a regular procedure prescribed under the Rules. Not only this, such an appointment has the approval of the competent authority as indicated hereinabove and acknowledged by the respondents therefore, it would not be appropriate to equate the word "regular" with the word "substantive". In Rule 14 referred to herein above, the legislature has very consciously used the words regular and not substantive. The continuity in service for the purpose of coming within the zone of consideration in service acquire under a regular procedure prescribed in law and is not necessarily to be construed on substantive basis. However, the candidate should be occupying the post in the feeder cadre on substantive basis on the date when he is to be considered for promotion.
11. The suggestion of the learned Standing Counsel that in effect the phrase continuous regular service means substantive cannot be accepted. His further argument to the effect that the words suggest surplusage also cannot be countenanced as unless and until it can be shown that the words were used loosely, the legislature cannot be termed to have acted in its wisdom for having used words, which it intended to mean otherwise. Surplusage cannot be inferred when the phrase is emphatic and is not hedged by any confusion. A least the Court in such a situation cannot interpret otherwise.
12. The other reason to conclude in the manner aforesaid is that the process of regularisatiomn takes a long time and is usually determined after a long passage of time making it almost uncertain. This procedure, therefore, will be presumed to be in the knowledge of the Rule framing Authority, which has deliberately not used the words substantive in Rule 14 in such circumstances. Regularization of the services of the petitioner does not make his earlier services irregular. The ad hoc tenure attains the status of a substantive tenure which process is termed as regularisation. Regularization means in simple language to put in order and to bring about in accordance with Rules. An appointment which is ad hoc, is made in accordance with Rules of substantive appointment, so as to enable a candidate to join the main stream cadre. For the purpose of eligibility what is required is continuity in service. The services of the petitioner continued un-interrupted even on ad hoc basis and were subsequently regularized."
13. The words are "continuous regular service". As already explained hereinabove, the petitioner fulfills the aforesaid condition and therefore, the impugned order is erroneous in law and is liable to be set aside. The order dated 07.08.2004 is quashed. This Court is supported in its view by the decision in the case of Committee of Management Vs. Director and others, Civil Misc. Writ Petition No. 22391 of 1999 decided on 27.08.1999 reported in 2000 (1) UPLBEC 46.
In the case of Sambhoo Prasad Vs. Authorized Controller, Sarva Hitaishi Inter College Ghaziabad and others reported 2008 (4) ESC 2923 (All)] another Single Judge has termed the judgment in the case Smt. Suman Bhatnagar as perincurium by taking following view as follows:
"31. The expressions 'regular service' has not been defined either under the provisions of the Act or rules framed thereunder or under U.P. Fundamental Rules contained in Chapter 2 Vol. 2 Part II to IV of Financial Handbook, which defines various general conditions of Government service, therefore, it is necessary to examine the content and import of the aforesaid expressions by taking help of dictionary meaning assigned to the aforesaid expressions and other recognised mode of interpretation of statute.
32. In Law of Lexicons the expression ' regular' and 'regular services' have been assigned meanings at page 1638-1639 as under:
" Regular - Webster defines "regular" to mean conformable to a rule; methodical; periodical.
"REGULAR" is derived from "regula", meaning "rule", and its first and legitimate signification, according to Webster, is "conformable to a rule' agreeable to an established rule, law, or principle, to a prescribed mode, or according to established, customary forms."
Regular- Conformable to rule; periodical; recurring or repeated at fixed times or uniform intervals; properly constituted; normal; marked by steadiness or uniformity of action, procedure or occurrence.
Regular services- The expression 'regular forces' mean officers and soldiers who by their commission, terms of enlistment, or otherwise are liable to render continuously for a term military service to His Majesty in every part of the world or in any specified part of the world. R.v. Governor of Wormwood Scrubbs Prison, (1948) 1 All ER 438, 441 (KBD). [Army Act. S. 190(8)]"
33. From a bare reading of the dictionary meaning of aforesaid expressions, it appears that expression 'regular' has been assigned various meanings, therefore, it is very difficult to find out appropriate meaning of the expressions 'regular service' from dictionary meaning so as to enable the court to come to a definite conclusion. The proper course in such cases is to search out and follow the true intent of the legislature and to adopt that sense of the word which harmonises best with the context and advance the object of the legislature. While determining as to the meaning of particular word in a particular statute it is, therefore, permissible to consider two aspects; viz (I) the external evidence derived from the circumstances such as previous legislation and decided cases and (II) internal evidence derived from the statute itself.
42. In this connection, it is necessary to point out that in case, the rule making authority would have intended to prescribe completion of merely five years continuous service, which may legitimately include adhoc services also, there would have been no occasion to use the expression 'regular ' as adjective before the word 'service' used in the said rules, therefore, the expression 'regular' must have its significance under the rule in question and the words used in the statute cannot be treated to surplus and superfluous without any meaning assigned to it. It is also well settled rule of construction of statute that unless it is unavoidable a construction renders a provision superfluous must be rejected. In Polester and Co. Ltd. Vs. Addl. Commissioner, Sales Tax, New Delhi AIR 1978 S.C. 897 Hon'ble Apex Court has held that a statutory enactment must ordinarily be construed according to plain and natural meaning of its language and no words should be added, altered or modified unless it is plainly necessary to do so in order to prevent a provision from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with rest of the statute. Thus, rule of literal construction is firmly established and it has received judicial recognition in numerous cases. Therefore, in view of such settled legal position, I am of considered opinion that the expression 'regular service' must be given different meaning from mere continuous uninterrupted service. It should not be equated with the continuous service. Further the expression 'regular service' should also not be equated with the services rendered by adhoc appointee as in that event of the matter, there would have been no occasion for the rule making authority to use the expression 'regular service' instead of merely using the expression 'continuous service' as used in the earlier Rules indicated herein before. This view does neither lead to any anomalous result nor lead to any absurdity and also finds support from the decision rendered by Hon'ble Apex Court in Haryana Veterinary and A.H.T.S. Association's case (supra) and Gurdeep Kumar Uppal's case (supra), therefore, I am unable to understand how the interpretation which was given to the Rule-9 of 1983 and Rule 14 of 1995 Rules shall also be given to the Rule 14(1) of 1998 Rules when the expressions employed under these Rules are substantially and qualitatively different from each other.
48. In my considered opinion the observation made by this Court in aforesaid case that ad hoc services shall be treated to be as regular service runs counter to the observation made by Hon'ble Apex Court in Baleshwar Das's case (supra), Haryana Veterinary and A.H.T.S. Association's case (supra) and Gurdeep Kumar Uppal's case (supra), therefore, cannot be held to be binding upon this Court because of the simple reason that the decision has been rendered in ignorance of binding precedent and law declared by Hon'ble Apex Court under Article 141 of the Constitution of India in aforesaid cases. In such a situation, the aforesaid decision of this court has to be held, rendered in per curiam and has no effect of binding precedent upon this court. In this case, the court has placed reliance upon Nand Kishore's case (supra) in respect of which, I have already held that the aforesaid decision did not lay down law on the question in issue and should be understood in context of the facts of the aforesaid case. Another case upon which reliance was placed was the case of Smt. Suman Bhatnagar, wherein the observation that continuous services rendered by ad hoc teacher has to be treated as regular services is also contrary to the dictum of Hon'ble Apex Court. Therefore, in my opinion the aforesaid decision also has to be held per incuriam, and have no effect of binding precedent. In view of these facts and circumstances of the case, with due respect to the Hon'ble Judge, I am not persuaded to take the same view as taken by Hon'ble Single Judge in Karishna Pal's case referred hereinbefore.
49. Thus, aforesaid discussion leaves no room for doubt to hold that the services rendered by the petitioner on ad hoc basis from the date of his joining as L.T. grade teacher w.e.f. 3.11.1992 till his regularisation on 18.8.1999 cannot be taken into account for computing his 5 years continuous regular service for the purposes of Rule 14(1) of 1998 Rules. It is only on or after 18.8.1999, on his regularisation on the post of L.T. grade teacher his services can be counted for continuous regular service to be considered for his promotion on the post of Lecturer under existing rule 14(1) of 1998 Rules. Therefore, I have no hesitation to hold that the petitioner was not eligible to be considered for promotion either on the date of occurrence of vacancy of English Lecturer on 30.6.1998 or on the first day of year of recruitment i.e. on 1.7.1997 on account of occurrence of vacancy on 30.6.1998 or on the first day of subsequent year of recruitment i.e. 1st July 1998 and thereafter till completion of 5 years continuous regular service subsequent to his regularisation. It is not in dispute that till he completes 5 years continuous regular service, 50% quota of promotion on the post of lecturer was already filled in the institution. Therefore, on this count also the writ petitions are liable to be dismissed.
The judgment in the case of Smt. Suman Bhatnagar has not taken note of the judgment of Hon'ble Apex Court in the case of State of Haryana Vs. ATH & association whereas in the case of Shambhoo Prasad said judgment has been taken note of. Recently again Hon'ble Apex Court in the case of State of Punjab Vs. Ashwani Kumar AIR 2009 SC 186, has taken note of the aforesaid judgment and held as follows: Paragraphs 2 to 6 are being extracted:
Challenge in this appeal is to the order passed by a Division Bench of the Punjab and Haryana High Court holding that the ad-hoc services of the respondents were to be counted for the purpose of seniority. Reliance was placed on certain other orders of the High Courts passed earlier. It is stated by learned counsel for the appellants that this Court had occasion to deal with the appeals filed by the State questioning correctness of the judgments on which reliance has been placed by the High Court.Respondents were initially appointed during the period 1978 to 1987 as Clerks on ad-hoc basis and were regularized between the period from 1980 to 1990. Respondents submitted representations claiming the benefit of their ad-hoc services relying on the judgment to which reference has been made by the High Court in the impugned judgment. Prayer was to the effect that the ad-hoc service was to be counted for all intents and purposes including seniority.
4. The main question that arises for consideration in this appeal is whether the period of ad-hoc services rendered by the respondents is to be included for calculating the seniority. This question was considered by a three-Judge Bench of this Court in State of Haryana v. Haryana Veterinary & AHTS Association and Anr. (2000 (8) SCC 4) wherein this Court took the view that for calculating 8/18 years service required for giving higher scale of pay and for determination of seniority only regular service rendered by the employee is to be counted and not ad-hoc service.
5. Learned counsel for the respondents strenuously contended that the respondents who are Clerks serving under the State of Punjab are governed by a set of Rules and circulars different from those which were considered in the decided case and, therefore, the ratio in that case will not be applicable in these cases. We have carefully considered the said contention. We have also considered the Government Letter No.4/8/85-3PPI/4408 dated 13.3.1996 containing the policy instructions. On a plain reading of the letter, it is clear that the instructions contained therein were based on the decision of the Punjab and Haryana High Court taking the view that ad-hoc service should be taken into account for the purpose. This letter in our view can no longer form the basis of the contention in view of the recent decision by this Court in State of Hayana v. Haryana Veterinary & AHTS Association and Anr. (supra). Undisputedly, the respondents at the time of their appointment were governed by the Punjab Civil Services (General and Common Conditions of service) Rules, 1994. In Rule 8 of the said Rules it is provided that the seniority of the persons appointed on purely provisional basis or on ad-hoc basis shall be determined as and when they are regularly appointed keeping in view the date of such regular appointment. Further, in the orders appointing the respondents on ad-hoc basis, it was specifically stated that they will be governed by the aforementioned Rules. It was further stated in paragraph III of the appointment letter that the appointees' seniority will be determined only by merit in which he or she is placed by Punjab Public Service Commission. Thus it is clear that only regular service is to be counted towards seniority.
6. We do not feel it necessary to delve further into merits of the case in view of the decision of this Court in State of Hayana v. Haryana Veterinary & AHTS Association and Anr. (supra). We are satisfied that the ratio in that case applies to the case in hand. The resultant position that emerges is that the judgment/order passed by the High Court holding that ad- hoc service is to be included in calculating the period of service for giving the higher scale of pay is unsustainable and has to be vacated. Accordingly, the appeal is allowed and the judgment/order of the High Court under challenge is set aside.
On the dictum of Hon'ble Apex Court, the ad-hoc service rendered cannot be kept at par with regular service and benefit of the same cannot be extended for computing five years continuous regular service. Once ad-hoc services have not been kept at par with regular service, then certainly appointees, appointed under scheme based on honorarium will not stand on better higher footing than the ad-hoc appointees.
Seeing the nature of appointment of the petitioner as Subject Expert, that it was made under the Scheme without there being any sanctioned post on fixed honorarium with no further right to be conferred and with liberty to work in any other separate establishment by no stretch of imagination same can be considered as regular continuance in service as Assistant Teacher in L.T. Grade. Appointment of the petitioner as Subject Expert was not made against any post rather it was under scheme wherein post was not at all there and as an alternate arrangement said arrangement has been made on fixed honorarium. Appointment made under the scheme dated 11.10.1999 as Subject Experts cannot be equated with the appointment made under the provision of U.P. Act V of 1982 and for the purposes of Rule 14 of U.P. Secondary Education Services Selection Board, Rules 1998 five years regular continuous service as Assistant Teacher has to be counted when appointment has been made against sanctioned post as per the provision as provided under U.P. Act No. V of 1982 and Rules framed thereunder. Service rendered by the petitioner as Subject Expert cannot be counted towards computation of five years regular continuous service as there is material distinction in between nature of appointment vis-a-viz scheme and vis-a-viz the provision of U.P. Act No. V of 1982 both are not at all comparable, as such factual position which is emerging that petitioner has acquired status of L.T. Grade vide order dated 12.09.2007 when against existing L.T. Grade post he has been absorbed. Service rendered prior to the same as Subject Expert cannot be treated as regular continuous service, as such qua the post of Lecture in English which has fallen vacant at Kundan Model Inter College, Amroha, District J.P. Nagar, petitioner is not at all liable to be considered for promotion, on account of lacking of essential eligibility criteria. Once petitioner is not at all falling within the zone of consideration of promotion and petitioner has alleged that on the basis of transfer Panjesh Kumar, respondent no. 5 Lecturer in English, Lok Priya Inter College District Meerut is attempting get himself transferred in such a situation and in this background writ petition at the best of petitioner is not being entertained and is accordingly dismissed.
Coupled with this it is reflected from the impugned letter that same has been written for taking action in the direction of transfer of Panjesh Kumar but no further exercise has been undertaken, as per record before this Court. It is understood that transfer is to be effected strictly as per the parameter as provided under Regulations 55 to 62 of Chapter III of U.P. Act No. II of 1921 and the letter which is under challenge is merely communication and nothing beyond the same.
No order as to cost.
Dated 14.09.2010 Dhruv